August 7, 2012

Per our recent posts, assignments are becoming the subject of more intense court scrutiny lately. This week, a Hawai’i Court found genuine issues of material fact in connection with an assignment made by MERS as the “nominee” of a bankrupt lender, which assignment was made without permission of the bankruptcy court. We were retained on a case today where MERS attempted an assignment in 2012 as to a lender which was shut down by court order in 2008 without any evidence of authority from the court which shut the lender down. As our readers also know, MERS repeatedly attempts to “assign” mortgage loans into securitized mortgage loan trusts years after the Closing Date of the Trust and without any authority to do so within the Trust documents.

As we also posted, on July 18, 2012, the Oregon Court of Appeals, in a 27-page decision which traced the history of the Oregon Trust Deed Act and MERS, came to the conclusion that the “creature of more modern vintage: MERS” is not the “beneficiary” under the Oregon Trust Deed Act. A Federal Court in Michigan has also issued two recent opinions which permit challenges to foreclosures by advertisement based on a flawed assignment.

We thus suspect that more and more courts are going to be taking a closer look at MERS assignments, and that more and more courts will ultimately hold that the assignments are either a legal nullity, not based in fact or law, or are patently fraudulent. High time: MERS has been getting away with this for over 10 years with impunity to the detriment of literally millions of homeowners.

Jeff Barnes, Esq.,